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Minnesota Equal Protection in the Third Millennium: "Old Formulations" Or "New Articulations"? Ann L

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Minnesota Equal Protection in the Third Millennium: William Mitchell Law Review Volume 20 | Issue 2 Article 5 1994 Minnesota Equal Protection in the Third Millennium: "Old Formulations" Or "New Articulations"? Ann L. Iijima Follow this and additional works at: http://open.mitchellhamline.edu/wmlr Recommended Citation Iijima, Ann L. (1994) "Minnesota Equal Protection in the Third Millennium: "Old Formulations" Or "New Articulations"?," William Mitchell Law Review: Vol. 20: Iss. 2, Article 5. Available at: http://open.mitchellhamline.edu/wmlr/vol20/iss2/5 This Article is brought to you for free and open access by the Law Reviews and Journals at Mitchell Hamline Open Access. It has been accepted for inclusion in William Mitchell Law Review by an authorized administrator of Mitchell Hamline Open Access. For more information, please contact [email protected]. © Mitchell Hamline School of Law Iijima: Minnesota Equal Protection in the Third Millennium: "Old Formulat MINNESOTA EQUAL PROTECTION IN THE THIRD MILLENNIUM: "OLD FORMULATIONS" OR "NEW ARTICULATIONS"? ANN L. IIJIMAt I. INTRODUCTION ...................................... 338 II. O VERVIEW ........................................... 339 III. "OLD FoRMULATIONS" -FEDERAL EQUAL PROTECTION ......................................... 341 A. Rational Basis Standard........................... 342 B. Heightened Scrutiny ............................... 343 1. Use of Suspect Classifications ................... 343 2. Interference with Fundamental Rights ........... 346 C. Rational Basis Standard with Teeth ................ 346 IV. MINNESOTA EQUAL PROTECTION ..................... 348 A. Rational Basis Standard........................... 349 1. Two-Factor and Three-FactorAnalyses: State v. Russell ....................................... 349 2. Relationship Between Two-Factor and Three-Factor Analyses: Competing Interpretationsor CoordinatingAlternatives? ..................... 353 3. Current Status of Rational Basis Standard ...... 359 B. Heightened Scrutiny Analysis ....................... 359 1. Proof of Intent to DiscriminateAgainst Suspect Class .................... .................... 360 2. Additional Suspect Classifications and FundamentalRights ........................... 368 V. "NEW ARTICULATION"-MULTI-FATOR SLIDING SCALE APPROACH TO EQUAL PROTECTION ................... 372 A. Need for an Independent Minnesota Equal Protection Standard ......................................... 372 B. Proposal: A Multi-FactorSliding-Scale Approach ..... 374 C. Assessment of the Multi-Factor Sliding-Scale Approach ......................................... 376 t Associate Professor, William Mitchell College of Law. B.A. 1977, Carleton Col- lege; J.D. 1985, University of Minnesota. The author wishes to thank Professor Kenneth Kirwin for his helpful comments and to Barbara J. Deneen and Mark Sexton for their research assistance. Published by Mitchell Hamline Open Access, 1994 1 William MitchellW/LLIAM Law MITCJiEL Review, Vol. 20,LAW Iss. 2REVLEW [1994], Art. 5 [Vol. 20 1. Reality of Approach ............................ 377 2. Attractiveness of Approach ...................... 379 3. Problems with Approach ........................ 381 VI. CONCLUSION ............................................ 381 I. INTRODUCTION Equal protection guarantees are arguably the most important constitutional guarantees of individual rights.' They balance governmental interests against two important individual rights: the right to be free from unnecessary governmental interference in the exercise of fundamental rights, and the right to be free from governmental discrimination against insular and politically powerless groups. One hundred and seventy-five years ago, the United States Supreme Court laid the foundation for equal protection review of legislation.2 Courts have applied the highly deferential ra- tional basis standard that developed from that early foundation under the equal protection provisions of both the United States and Minnesota Constitutions. Under both provisions, however, federal and state courts have found it necessary to adopt height- ened standards of review in certain situations. Part I of this Article provides an overview of equal protection jurisprudence. Part II focuses on the efforts of federal courts to establish an equal protection standard that fairly balances the interests of the government and the interests of individuals. Part III discusses a similar effort by Minnesota courts to establish a fair standard under the state constitution. This commentary ex- amines the comparison engendered by Minnesota's two rational basis standards and discusses points of departure from the fed- eral heightened scrutiny standards. Part IV proposes and de- signs a multi-factor approach that would address the apparent 1. SeeJOHN E. NowAK & RONALD D. ROTUNDA, CONSTrruTrIONAL LAw 568 (4th ed. 1991). Nowak and Rotunda comment: In recent years the equal protection guarantee has become the single most important concept in the Constitution for the protection of individual rights. As we have seen, substantive due process analysis was disclaimed after 1937 and the justices today are not willing to restrict the legislative ability to deal with a subject under that analysis. And the privileges or immunities clause of the fourteenth amendment has never been a meaningful vehicle for the judi- cial review of state actions, although it may have been intended to be a pri- mary safeguard of natural law rights by the drafters of the amendment. Id. (footnotes omitted). 2. See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). http://open.mitchellhamline.edu/wmlr/vol20/iss2/5 2 1994] Iijima: Minnesota Equal EQUALProtection PROTECTION in the Third Millennium: "Old Formulat concerns of the judiciary and provide clear guidance to state lawmakers. Part V concludes that, after a century-long effort to construct a just system based on rigid categories, Minnesota courts should abandon that attempt and adopt the multi-factor approach. II. OVERVIEW Both the Fourteenth Amendment of the United States Consti- tution' and article 1, section 2 of the Minnesota Constitution4 provide individuals with equal protection guarantees from state and local governmental regulation.5 3. U.S. CONST. amend. XIV. The Fourteenth Amendment of the United States Constitution provides that "[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws." Id. § 1. 4. MINN. CONST. art. I. Section 2 of article I provides: "No member of this State shall be disfranchised, or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land, or the judgment of his peers." Id. § 2. Although the Minnesota Constitution does not have an equal protection clause per se, article 1, § 2 is most frequently cited as the source of state equal protection rights. See, e.g., State v. Russell, 477 N.W.2d 886, 887 (Minn. 1991) (citing article I, § 2 of the Minnesota Constitution). The language of this provision is significantly different from the language of the Fourteenth Amendment of the United States Constitution, facially providing guarantees more along the lines of due process protection. Assuming Minne- sota article I is a due process provision, however, rights to equal protection arguably may be implied in a manner similar to the implication of equal protection under the Due Process Clause of the Fifth Amendment of the United States Constitution. See infra note 5. On the other hand, a number of Minnesota cases have found the source of equal protection in other provisions of the Minnesota Constitution. See, e.g., State v. Pehrson, 205 Minn. 573, 577, 287 N.W. 313, 315 (1939) (relying on article IV, § 33 as well as on article I, § 2); Franke v. Allen, 199 Minn. 450, 272 N.W. 165 (1937) (rejecting defend- ant's argument that the statute violated his equal protection rights found in article IV, §§ 33-34). At one time, article IV, § 33 provided: "In all cases when a general law can be made applicable, no special law shall be enacted. ... " MINN. CONST. of 1857, art. IV, § 33 (1881). This provision became article XII, § 1 of the Minnesota Constitution when it was amended and restructured in 1974. See MINN. CONSr. art. XII, § 1. Justice Tomlja- novich attempted to clarify this issue in her dissenting opinion in Mitchell v. Steffen, 504 N.W.2d 198 (1993). "Our equal protection 'clause' is an un-enumerated but inher- ent constitutional right, found and confirmed in Minn. Const. art. I, § 16 and included in art. I, § 2. Under this equality guaranty, 'persons similarly situated are to be treated alike unless a sufficient basis exists for distinguishing among them.' " Id. at 208 (cita- tions omitted). 5. The Fifth Amendment, which applies to acts of the federal government, does not have an equal protection provision, per se. The Fifth Amendment provides that "[n]o person shall ... be deprived of life, liberty, or property, without due process of law." U.S. CONS-r. amend. V. This Due Process Clause has been construed to provide equal protection guarantees. See, e.g., Bolling v. Sharpe, 347 U.S. 497, 499 (1954) (rec- Published by Mitchell Hamline Open Access, 1994 3 William MitchellWILLIAM Law MITCHELL Review, Vol. 20,LAW Iss. 2REVIEW [1994], Art. 5 [Vol. 20 To determine whether or not state action violates equal pro- tection, federal and state courts traditionally have balanced the interests of the individual against those of the governmental en- tity that seeks to regulate the individual's activities.6 This balanc- ing approach has focused on
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